The instructions for HIV-positive cases have been updated to include justification for the partner notification procedure.
The following note has been added under the “Interview with a visa or immigration officer” section:
Note: IRCC attests that this policy is not intended to inflict unnecessary hardship on applicants or sponsors. Rather, it is a measure to protect the health and safety of the spouses and partners (residing in Canada) of applicants in the family and dependent refugee classes who test positive for HIV.
Procedure for HIV-positive cases
Automatic partner notification of sponsored family class applicants who test positive for HIV
Applicants in the family class and the dependent refugee class who
test positive for HIV may not be assessed as medically inadmissible due
to excessive demand on Canada’s health care system [A38(2)].
Their sexual partners residing in Canada must be made aware of the risk
this serious medical condition may place on their health.
Automatic partner notification will give applicants in the family and
dependant refugee classes who test positive for HIV 60 days from the
date of being informed of the policy to voluntarily disclose their
HIV-positive status to their spouse or partner or to withdraw their
application. After this period, the Department will formally notify the
spouse or partner of their dependants’ HIV-positive status before
proceeding with the application.
To facilitate Immigration, Refugees and Citizenship Canada (IRCC)’s
commitment toward public health and safety, this policy provides
HIV-positive applicants with an appropriate window of opportunity to
voluntarily disclose their medical status or withdraw their application.
Medical officers will continue to notify immigration program managers
of cases where individuals test positive for HIV in both the family
class and dependant refugee class. Although these cases are few, it is
important that these instructions be followed accurately.
General overview of the policy
All permanent resident applicants who are 15 years of age or older,
as well as children who have certain risk factors, such as having
received blood or blood products, having a known HIV-positive mother or
being potential adoptees are required to undergo an HIV test as part of
the medical examination.
As part of this medical examination, the responsible panel physician
will provide post-test counselling to HIV-positive applicants as per the
handbook for designated medical practitioners. The panel physician will have the applicant sign the Acknowledgement of HIV post-test counselling form [IMM 5728E (PDF, 528.39KB)].
Applicants will then be required to attend an interview with a visa
or immigration officer, where they will be informed of the Automatic
partner notification policy for HIV-positive applicants in the family
and dependant refugee classes and will be asked to sign the
Acknowledgment of the automatic partner notification policy for
HIV-positive applicants in the family and dependant refugee classes to
indicate they’ve been informed of this policy. The officer should be
satisfied that the applicant has understood the implications and been
informed of the policy and should address any concerns the applicant may
have with regard to their application.
The visa or immigration officer will then give the applicant 60 days
to disclose their HIV-positive status to their spouse or partner
residing in Canada or withdraw their application.
After 60 days have elapsed from the date of the interview, the
officer will send a partner notification letter to the known spouse or
partner in Canada.
In administering the automatic partner notification policy, it is
essential that visa and immigration officers ensure the following:
- that all applicants have signed the Acknowledgment of the
automatic partner notification policy for HIV-positive applicants in the
family and dependant refugee classes;
- that all applicants clearly understand the implications of the
policy, including the direct consequences of withdrawal of their
application and of being HIV-positive (see Guidelines for witnesses);
- that all applicants have been given 60 days to voluntarily
disclose their status or withdraw their application before a formal
notification is sent to the spouse or common-law or conjugal partner
residing in Canada;
- that case notes clearly reflect all counselling given to the
applicant, the decisions agreed to by the applicant and the steps taken
in completing the notification process.
Procedures
- Post-test counselling by a panel physician
- Identification of an HIV-Positive Applicant
- Interview with a visa or immigration officer
- Consequences after interview
- Consequences 60 days after interview
- Formal notification to the spouse or partner
1. Post-test counselling by a panel physician
The responsible panel physician will provide post-test counselling to
HIV-positive applicants and will counsel them on the medical, social
and psychological implications of being HIV-positive. Topics will
include only those that have a pertinent medical theme and will not
include any implications for the immigration application. The panel
physician will have the applicant sign the Acknowledgement of post-test
counselling form [IMM 5728E (PDF, 528.39KB)].
2. Identification of an HIV-positive applicant
-
Responsible medical officer
The responsible medical officer will notify the responsible
immigration program manager in writing when an applicant who is exempt
under subsection A38(2) tests positive for HIV, including any risk assessment made on public health or public safety grounds.
-
Family class procedures
For those who took advantage of the family class procedures, some
applicants may already know their HIV status before missions have
received their completed applications and created family class files. In
such cases, missions should not initiate any partner notification
process until a file has been created at the visa office and the
applicant has completed all necessary counselling as per the
instructions below.
3. Interview with a visa or immigration officer
-
Verification of post-test counselling
Given the serious medical, ethical and legal concerns involved
when dealing with HIV-positive applicants, officers should ensure that
all of these applicants are interviewed in person. Visa and immigration
officers should not discuss the issue of partner notification with
applicants who do not possess an Acknowledgement of HIV post-test
counselling form [IMM 5728E (PDF, 528.39KB)].
If, during an interview, it becomes apparent that the applicant
does not adequately understand the nature of their medical condition,
the interview should be suspended. In these cases, the officer should
advise the applicant to revisit the panel physician originally seen to
seek further counselling and should request that another Acknowledgement
of HIV post-test counselling form [IMM 5728E (PDF, 528.39KB)] be provided.
Once the officer is satisfied that the applicant understands the
implications of their medical condition, the officer should proceed with
an explanation of the Automatic partner notification policy for
HIV-positive applicants in the family and dependant refugee classes.
Note: IRCC attests that this policy is not
intended to inflict unnecessary hardship on applicants or sponsors.
Rather, it is a measure to protect the health and safety of the spouses
and partners (residing in Canada) of applicants in the family and
dependent refugee classes who test positive for HIV.
-
Explanation of the automatic partner notification policy
It is the officer’s responsibility to explain to the applicant
the Automatic partner notification policy for HIV-positive applicants in
the family and dependant refugee classes.
After determining that the applicant understands the policy, its
potential consequences and the options available, the visa or
immigration officer should ensure that the applicant
- has reviewed and signed the acknowledgment of the Automatic
partner notification policy for HIV-positive applicants in the family
and dependant refugee classes;
- has been provided with a copy of the automatic partner notification policy; and
- has been provided with a copy of the signed acknowledgement.
Note: If an interpreter is required, the
Interpreter declaration form should be completed. The instructions in
Guidelines for witnesses (to be used by visa and immigration officers)
should also be used, as necessary.
Applicants should be advised that signing the Acknowledgment of
the automatic partner notification policy for HIV-positive applicants in
the family and dependant refugee classes will not in any way affect the
processing of their application to completion. Applicants who do not
sign the form should be advised that the form exists only to ensure that
the Department has a record that the applicants have been informed of
the policy and have had the opportunity to discuss their options under
the policy.
The visa or immigration officer should make sure all case notes
reflect the counselling, the decisions and the steps taken between the
visa or immigration officer and the applicant in completing the
notification process.
4. Consequences after interview
-
The applicant does not sign the acknowledgement of the automatic partner notification policy.
Processing should continue with notes on file indicating that the
applicant understood the policy but chose not to sign the
acknowledgement. Such cases should be flagged to NHQ Litigation
Management (BCL).
-
The applicant expresses personal concerns, such as
concern about a risk to their safety should their HIV status become
known, that cannot be satisfied by standard counselling.
Visa and immigration officers should advise the immigration
program manager of such cases. They will be dealt with in consultation
with International Region – Operational Coordination (RIM) and other
headquarters divisions as appropriate.
5. Consequences 60 days after interview
Officers should ensure that 60 days have passed from the date of
interview before continuing with processing the application as explained
below.
-
The applicant withdraws.
Officers should process withdrawals by the applicant according to normal procedures.
-
The sponsor withdraws.
If the visa office is informed by the Case Processing Centre in
Mississauga (CPC-M) that the sponsor (i.e., spouse or partner residing
in Canada) has withdrawn the sponsorship, the visa office should refuse
the application as per standard procedures using the refusal letter for
sponsorship withdrawal.
-
Neither the sponsor nor the applicant withdraws.
If the visa office has not received notification from the CPC-M
that the sponsor has withdrawn the sponsorship or if the applicant has
not indicated that they wish to withdraw their application, case
processing should resume to finalization.
6. Formal notification to the spouse or partner
If no withdrawals have been made by either the applicant or the
sponsor, officers should prepare and send the partner notification
letter, along with the HIV contact information in Canada
handout, to known spouses or partners residing in Canada with copies on
file. The visa or immigration officer should ensure that the spouse or
partner’s address is the most current available by either requesting
verification from the CPC-M for family class applicants or verifying the
paper file of the dependant refugee class applicant.
Guidelines for witnesses (to be used by visa and immigration officers)
(For use by officers witnessing an applicant’s signature)
The following rules are general in nature and should be used by
officers when completing any forms used to process HIV-positive
applicants in the family and dependant refugee classes. They should not
be considered all-inclusive.
It is important to ensure that the applicant fully understands the
implications of being HIV-positive and/or of the Automatic partner
notification policy for HIV-positive applicants in the family and
dependant refugee classes. The officer should also find out whether an
interpreter is required prior to convoking an interview and should use
the interpreter declaration form when necessary.
General guidance
- Do not obtain the applicant’s signature until the discussion of
the automatic notification policy and the implications of testing
positive for HIV have been completed.
- Do not obtain a signature of consent from an applicant who is
under the influence of medication that might affect their mental ability
to make a decision regarding their understanding of the policy and any
options available.
- Fill in blanks in block letters that are clearly legible, in blue or black ink.
- Make sure that the form is complete before the applicant signs it.
- Have the form signed before the disclosure to the spouse or partner takes place.
- If the applicant has any questions after the form is signed, delay
acting on partner notification until the questions are answered.
- Do not use terms that the applicant will not understand when explaining the automatic partner notification policy.
- Do not make any additions, deletions or alterations to the form after the applicant signs it.
- Make sure that the statement being signed by the applicant is correct.
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